The Impact of an Affair on Your Divorce Case

Many people consider divorce after discovering a partner’s affair. As a salt lake city divorce lawyer, the Christensen Law Firm and I have represented numerous clients whose marriages ended due to infidelity. This includes representing clients on both sides of the equation. Often, clients want to know whether cheating impacts issues like alimony, custody, and child support.

In Utah, adultery initiates divorce as a considered fault ground. Utah is a “no fault” divorce state. This means neither party needs to prove fault in order for a divorce to be granted. However, a party can allege fault, such as adultery, as grounds for divorce. The benefit of alleging adultery as grounds for the divorce is a question which requires careful consideration. Accordingly, consult an attorney regarding the specific facts of each case.

Building a Divorce Case Around Evidence of an Affair

Although an affair used as grounds for a fault-based divorce in Utah, cheating can have little effect on a case if the fact of cheating has not directly impacted the parties’ children or the couple’s finances. However, if the cheating party squandered marital assets while pursuing an affair or if the children were directly impacted by the affair through exposure to one parent’s sexual exploits, these facts can have an impact on custody and support.

Finally, whatever side of the infidelity you find yourself on, it is helpful to discuss your options with an attorney. We can help you

  • understand the law
  • get a sense of what kind of support you can receive
  • and custody entitled to you in the divorce.
Sarah ChristensenThe Impact of an Affair on Your Divorce Case
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Qualified Domestic Relations Order (QDRO)

Retirement accounts, including but not limited to

  • 401ks
  • IRAs
  • pension plans

These are usually some of the most important assets to divide between divorcing spouses. Parties typically agree on how this account divides between them. However, the parties and their attorneys need to be more specific. They need to do more than designate the divorce decree or settlement agreement to divide the accounts. The retirement plan can be subject to the Employee Retirement Security Act (ERISA). If this is the case, the parties will need to draft a Qualified Domestic Relations Order (QDRO). The Court and the retirement plan’s administrator both then accept or reject the QDRO. A party who does not draft a proper QDRO can find themselves forfeiting a portion, or the entire amount, of the retirement account, that the party received in the divorce decree.

What is a QDRO?

A retirement account subject to ERISA requires a special order to divide the retirement account to award a portion of the account to an individual other than the plan participant. The alternate payee refers to the individual receiving a portion of their spouse’s account. A proper QDRO consists of an order approved by the Court and the plan administrator. They certify that the division of the retirement account complies with both federal law and the plan administrator’s specific requirements. Once approved, the plan administrator can divide the retirement account. They then award a portion of the account to the alternate payee.

Do I need a QDRO?

Only retirement accounts subject to ERISA require a QDRO. An IRA usually does not require a QDRO. This is because the account owner is the person in control of the account and considered the plan administrator (I.R.C. § 408). However, each retirement plan is different. It is best to check with the plan administrator to see what documents they require to divide the account.

Important QDRO Considerations

It is important that you consult with your Salt Lake City divorce lawyer when contemplating the division of any retirement account. Usually, the attorney for the alternate payee is the party responsible for drafting the QDRO. There are, however, many attorneys who do not draft QDROs. It is important that you talk with your attorney to know if they plan on drafting the QDRO or if you will need separate counsel.

Many retirement account plan administrators have sample QDRO forms that an attorney or party can fill out. However, it is important to remember that the plan administrator designed these forms for their ease. They are not designed necessarily for the benefit of the alternate payee. It is important that the alternate payee’s attorney carefully drafts a QDRO that is in the best interests of his or her client and not for the ease of the plan administrator.

It is vital that a party drafts a QDRO immediately. A person who unnecessarily delays drafting and finalizing the QDRO may inadvertently waive their interest in the retirement plan. If you were awarded a portion of a retirement account in a divorce and do not know if the account was properly divided by a QDRO, please consult with us immediately to see what options are available.

Sarah ChristensenQualified Domestic Relations Order (QDRO)
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What to Expect at Mediation

Utah courts often require you to mediate if you are party to a divorce or custody case. Sometimes this happens earlier in the case if it seems like a settlement is likely. Other times, the mediation comes later. A successful mediation can end the case and save you money.

Christensen Law is a Salt Lake City law firm, and its attorneys can help you in court and at mediation. Obviously, our advice is tailored to specific individuals, situations, and cases. However, we provide below some general tips to keep in mind.

Be Prepared

At mediation, you will be negotiating and possibly agreeing to a long-term arrangement. You must know what you need and what you want. Some of your needs and wants are obvious to you. Others are not so obvious. An attorney can help you avoid pitfalls and traps from a sloppy settlement.

Don’t Worry About Being Too Prepared

There is no script that you must follow. You will find that the mediator will effectively push the discussion along.

Keep Long-Term Consequences in Mind

We have two specific warnings for long-term consequences.

  1. We understand that you want the case to be over as soon as possible. Wanting to end the case quickly can lead you to accepting a bad settlement. However, if you cannot live with the result, you will be in court again.
  2. We understand that there are issues or items important to you. We also understand that things are sometimes unfair. Sometimes fighting only makes it worse. There are times when you will need to cut your losses.

Patience

Be prepared to be patient. Mediation sessions often last several hours. Often there is not much progress in the first couple of hours. Sometimes there is an agreement, but it takes a long time to fine tune the details.

Ensure the Settlement Is Written and Signed

The other party may get buyer’s remorse. Unfortunately, your settlement is worth very little if it is not in writing.

Sarah ChristensenWhat to Expect at Mediation
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How to Declare Paternity For Unmarried Partners

When a husband and wife have a baby, the law recognizes them as the parents of the child. Both parents enjoy certain legal rights and responsibilities. When an unmarried mother gives birth, the father doesn’t automatically have any of the legal rights or duties that go along with fatherhood. Establishing paternity (fatherhood) gives unmarried fathers all the same rights and duties that married parents have when a child is born.

Paternity is established in three possible ways to unmarried parents.

 

1. Declaration of Paternity

First, both parents may sign and file a voluntary Declaration of Paternity. The Declaration of Paternity must be:

  • In a record prescribed by the Office of Vital Records;
  • Signed under penalty of perjury by the mother and father;
  • Signed in the presence of two witnesses who are not related by blood or marriage; and
  • State that the child whose paternity is being declared has a presumed father whose full name is stated and does not have any other declared or court-determined father;
  • State whether there has been genetic testing and, if so, that the father’s claim of paternity is consistent with the results of the genetic testing; and
  • State that the mother and father understand that the declaration equals a legal finding of paternity for the child. Very limited circumstances permit a challenge to the declared fatherhood.

A Declaration of Paternity may be completed and signed any time after the birth of the child. Once completed and signed, filing the Declaration puts it into effect. The Office of Vital Records then enters it into their database to establish and maintain it.

The Declaration of Paternity is the fastest, easiest and least expensive way to establish paternity in Utah.

2. Administrative Paternity Order

One parent may apply for child support services and obtain an Administrative Paternity Order. The Office of Recovery Services provides this service once paternity is verified.

3. Petition Requesting Judgment of Paternity

Finally, one or both parents, the child, or the state of Utah may file a petition in court requesting a judgment of paternity. If the court contests the petition, then they may order a blood or genetic marker test to determine paternity.

Establishing paternity provides many benefits to families, including:

  • Financial support from both parents
  • Includes the child on either parent’s health insurance plan
  • May help doctors to obtain the child’s family health history through research
  • Permits a father to pursue the rights that go along with fatherhood including decision-making and parent-time
  • Gives the child claim to benefits from the father such as inheritance, social security, and veteran’s benefits.

If you are trying to establish your rights as a father, give Christensen Law a call. We can help you work through the legal process necessary to protect your rights.

Sarah ChristensenHow to Declare Paternity For Unmarried Partners
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When Should I File a Petition to Modify?

Parents often ask a Salt Lake City family lawyer what needs to happen in order to modify their existing custody arrangement. Unfortunately, the answer is always “It depends.”

Utah law allows one or both parents of a child to petition a court to modify. They can modify an order that establishes joint legal or physical custody. A parent would have to show enough evidence that shows the circumstances of the child or parents have changed significantly. This is relevant if the changes have been made since the entry of the order that is being modified. They also have to show that the change of the previous order would be in the best interest of the child. A court will almost always require the disputing parents to mediate the dispute before the court decides the matter.

There Needs to be Substantial Change

In order to modify the existing custody arrangement, the moving party must demonstrate a material and substantial change since the entry of the previous order. Even if the proposed new arrangement would be more beneficial to the child, a court cannot consider the new arrangement without first finding a substantial and material change has occurred. In determining a possible modification, the court will consider a variety of factors.

These include (but are not limited to):

  • the past conduct and moral standards of each of the parties
  • the desires of the parties
  • the ability of a parent to have frequent and continuing contact with the other parent
  • the proximity of the homes of the parents
  • the ability of the parents to cooperate
  • any other factors the court finds relevant.

The court will give substantial weight to the existing order if the child is thriving, happy, and well-adjusted.

 

Whether or not a material and substantial changes have occurred is a factual determination. This varies from situation to situation and court to court. Courts have found that a parent’s relocation, a child starting school, and one parent continually preventing the other parent from exercising his or her parenting time is enough to justify a modification. However, a court will not automatically find those specific situations enough to justify a modification. It is important to consult with a Salt Lake City family law attorney before a parent files a petition to modify. This ensures the parent has a valid basis to modify. It is important to not file a petition to modify or answer frivolously. The court has the ability to assess the other parent’s attorney fees as a cost toward the offending parent.

Sarah ChristensenWhen Should I File a Petition to Modify?
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Initial Disclosures in Utah Divorce and Child Custody Cases

Utah courts require the parties in divorce and child custody cases to make initial disclosures to each other. The deadlines are automatically triggered when the respondent files his or her answer to the divorce or custody petition. Each party needs to meet the requirements to avoid flak from the other party and the court. But, doing initial disclosures right can also ensure that the case goes well. Good initial disclosures can make a positive difference at hearings, mediation, and trial.

As part of your divorce or custody case, Christensen Law’s attorneys assist with initial disclosures. Our assistance includes both preparing your disclosures and reviewing the other spouse or parent’s disclosures. Each case is unique, but below, we provide some generalities for reference purposes only.

What is involved with initial disclosures?

Typically, in family law cases, initial disclosures include financial declarations, witness names, and documents. In domestic cases, such as custody, divorce, parentage, annulment, etc., the parties must provide financial declarations. A financial declaration involves you sharing information about your income, assets, debts, and expenses. Both sides must provide a financial declaration and the documents to back it up. Such supporting documents include bank statements, tax returns, pay stubs, etc. Additionally, the parties should disclose any other documents or witnesses that they might use at

Additionally, the parties should disclose any other documents or witnesses that they might use at trial. The documents can relate to a number of things. When custody is at issue, you will want to gather documents showing your involvement in the lives of your children. For child support, you will want to gather documents showing that the other parent can make money. For debts and assets, you will want anything that supports your preference for how to divide everything. If any witnesses can back up the information, it helps to list them.

Why should you do a good job with initial disclosures?

There are a number of reasons why you should invest time into doing initial disclosures. We offer a number of reasons below:

  • It will help you organize and prepare your own case.
  • Obeying the rules requiring disclosure will keep you in the court’s good graces.
  • Having disclosures available will make it easier to mediate or prepare for mediation.
  • Your preparation and materials can be a reality check for an unreasonable opposing party.
Peter ChristensenInitial Disclosures in Utah Divorce and Child Custody Cases
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Recently Moved? See If You Can Modify Your Custody Agreement

When a court enters an order governing child custody it is always after hearing the presentation of evidence. The court will consider each of the facts and circumstances inherent to the particular situation of the family. This aids in making the orders accordingly.

That custody order becomes the governing and controlling schedule of custody unless and until a court modifies the order. Because the custody order is dependent on a particular set of facts, that order is the law of the case and will not be modified unless there is a showing of a “material and substantial change in circumstances.” See Hogge v. Hogge, 649 P.2d 51 (UTAH 1982).

Why Is “Best Interests of the Children” so Important?

In short, if one parent wishes to modify a custody award after a divorce decree or custody order has been entered, that party must be prepared to demonstrate a material and substantial change in circumstances. However, the question of whether there are such changes is only the first question to be asked. Only if there are such changes, the court will move on to the oft-quoted next question. Is it in the (let’s all say it together) “best interests of the children?”

Some common examples of changes in circumstances include parents remarrying, moving a significant distance away from the other parent, changing schools, among others. While these changes may constitute material changes in circumstances, they may not warrant a change in custody.

From the Court’s Point of View

The court will then consider if a change of custody is in the best interest of the child. If the court decides that the child’s friends, extended family, and school are so vital to their well-being that a change in custody would be worse for the child, the court won’t order it.

If the primary custodial parent moves and wishes to take the child with them, the court will consider several factors. They’ll look at the reasons for the move, the impact upon the child, and may order a change in custody to keep the child in his or her location in spite of primary parent’s relocation.

Each of these scenarios is fact sensitive. Anyone considering whether a modification of custody is appropriate should consult an attorney.

Sarah ChristensenRecently Moved? See If You Can Modify Your Custody Agreement
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Alimony: Marital Standard of Living

The Utah courts define the standard of living as “a minimum of necessities, comforts, or luxuries held essential to maintaining a person or group in customary or proper status or circumstances.”

The Utah Supreme Court has held that “it is the purpose of alimony is to equalize the standard of living for both spouses, maintain them at their present standard of living as much as possible, and avoid the necessity of one spouse receiving public assistance.” See Mullins v. Mullins, 2016 UT App. 77, ¶ 10 (quoting Boyle v. Boyle, 735 P.2d 669, 671 (Utah Ct. App. 1987)). “Usually the needs of the spouses are assessed in light of the standard of living they had during the marriage.” Martinez v. Martinez, 818 P.2d 538, 542 (Utah 1991).

7 Factors the Court Uses to Determine Alimony

  1. the financial condition and needs of the recipient spouse;
  2. the recipient’s earning capacity or ability to produce income. This includes the impact of diminished workplace experience resulting from primarily caring for a child of the payor spouse;
  3. the ability of the payor spouse to provide support;
  4. the length of the marriage;
  5. whether the recipient spouse has custody of minor children requiring support;
  6. whether the recipient spouse worked in a business owned or operated by the payer spouse; and
  7. whether the recipient spouse directly contributed to any increase, such as education, in the payer spouse’s skill during the marriage.

Thus, although the goal of alimony is to maintain the parties at their marital standard of living, it is ultimately a balancing act by the court. The courts use mainly the Financial Declaration to balance one party’s respective need for alimony against the other’s ability to pay. Each party must submit a Financial Declaration to the court or they become subject to a penalty of perjury. The Financial Declaration states the party’s assets, liabilities, monthly income, and monthly expenses.

Other Things to Consider

Importantly, the Court can allow reasonably anticipated expenses. According to State Law, the court must “avoid focusing on actual expenses alone when assessing need because the expense level during separation may be necessarily lower than needed to maintain an appropriate standard of living.” See Kidd v. Kidd, 2014 UT App. 26, ¶ 24. Through the reasonably anticipated expenses, the spouses can establish the marital standard of living.

However, credible evidence must support these expenses. It is critical to have spent time during the discovery period obtaining and disclosing all evidence that may be used at trial. The evidence that establishes the marital standard of living could include bank and other financial statements, receipts, bills, etc.

Therefore it is best, to begin with this end in mind. The parties should gather the evidence needed to prove the standard of living that they enjoyed during the marriage. Include in your Financial Declaration your anticipated expenses based on this standard of living which should include your “minimum necessities, comforts, or luxuries held essential to maintaining [you] in customary or proper status or circumstances” which you enjoyed during your marriage and be prepared to back it up with credible evidence at trial.

Peter ChristensenAlimony: Marital Standard of Living
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Work-Related Child Care Expenses

Utah law allows a Court to issues orders regarding the payment of expenses considered reasonable and necessary. Reasonable and necessary means work-related child care expense for the dependent children. The order for the payment of work-related child care expenses is in addition to the standard monthly child support. Depending on the child and situation, work-related child care expenses can become expensive for any parent to afford alone. Every divorced parent must follow the Court’s orders regarding work-related child care expenses. This is so that no party is solely responsible for those costs.

The Court will determine how to allocate the work-related child care expenses between the parties. The Court will typically order the parties to share those expenses equally. However, a Court may order the costs be split pro-rata according to the parties’ income. This happens if there is a substantial difference between their earning capabilities. The Court will also designate the party who shall initially pay the bill.

The other parent will then need to reimburse the paying parent for his or her share of the bill. Typically, the party who takes the party to the care provider is the party who initially pays the bill. However, the Court’s order will ultimately dictate who is responsible for the initial amount. It is the paying parent’s responsibility to make sure they give a copy of the bill to the other parent.  Then they must request reimbursement for his or her share.

5 Important Tips to Follow When Dealing with Work-Related Child Care Expenses in a Post-Divorce Context

  • The court requires both parties to share child care expenses considered reasonable and work-related. The child care must be necessary for the parent to go to work. The court does not require the other parent to pay for half of the child care expenses for non-work related reasons (such as a babysitter so the other parent can go on a date or church activity) unless the other parent agrees otherwise.
  • Consult with the other parent regarding the care, the cost, payment options, and any reasonable alternatives when determining a child care provider. A parent who unreasonably incurs expenses without consulting the other parent may find themselves solely responsible for the expense.
  • When you receive the bill for the child care expense, immediately send a copy of the bill to the other parent. Do not allow them to accumulate. The Court will generally state that requests for reimbursements must be made within a certain amount of time. A parent who fails to request reimbursement in time may find out that they waived the right to reimbursement by failing to notify the other parent of the expense.
  • Send the request for reimbursement with a copy of the bill or invoice to the other parent via e- mail that way you have a copy of what was sent and when it was sent. You will have proof that you made the request if there is ever a dispute about whether or not you ever requested to be reimbursed.
  • Certain work-related child care expenses can give a parent a refundable tax credit. However, a parent can usually only claim the credit if he or she is claiming the qualifying dependent. Make sure that you work with your attorney and accountant to make sure that you will qualify for the tax credit.
Peter ChristensenWork-Related Child Care Expenses
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Dealing with an Adverse Custody or Financial Decision

In a Utah divorce or custody case, you may find yourself up against an adverse custody or financial decision. If you have any desire to challenge the decision, you must act fast. There are almost always deadlines to challenge a court’s decision. Those types of deadlines are not forgiving and can prevent you from obtaining relief you might deserve. Your options for challenging the decision depend on what kind of decision it was.

The attorneys at Christensen Law can help evaluate your situation and make specific recommendations. They can also help you carry out the recommendations and provide advice tailored to you. For informational purposes, we provide some generic observations below.

Commissioner Decisions

In Utah, a lot of family law court hearings are conducted before commissioners. Commissioners are like judges, but instead of making orders, they recommend orders. Their recommendations are court orders unless changed. If you disagree with a recommendation, you may object to it within fourteen days. The fourteen days begins when the commissioner makes the recommendation in court or when the commissioner issues a written recommendation. A judge will take your objection into consideration.

Judge Decisions

There are a variety of avenues available for challenging a judge’s decision. The availability of these avenues depends on the status of your case. If the judge’s decision is not a final judgment, the judge can reconsider his or her decision. If there is a final judgment, it may be possible to file a motion for additional findings or new trial. Such motions can lead to altered decisions. If you have exhausted options that will result in the judge changing the decision, you can appeal. An appeal involves asking a higher court to review the decision for error. An appeal can be complicated and expensive, so it is worth trying the other options first. Pursuing those options can also help improve your chances on appeal.

Peter ChristensenDealing with an Adverse Custody or Financial Decision
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